11/06/2018

SCOTUSblog's "Empirical SCOTUS" feature has this post: With a little help from academic scholarship. Among many interesting findings, author Adam Feldman's analysis suggests that originalist scholarship is a good way to get cited by Supreme Court Justices (though not so much in majority opinions). He finds:

Justices Clarence Thomas and Neil Gorsuch were much more likely to cite journal articles than their colleagues on the court, as Thomas had by far the most such cites and Gorsuch had all of his cites in a little over one term. Thomas cited the majority of these articles in his dissenting opinions; 39 of his citations came in dissent compared to 33 in concurrence, and only 7 in majority opinions. Gorsuch on the other hand mainly cited articles in his concurrences with 23, compared to 19 in dissent and only two in the majority.

The post doesn't directly examine what kinds of articles are cited, but as Thomas and Gorsuch are the most strongly originalist Justices, it seems likely that originalist articles catch their eye. This is borne out by another set of findings: the post lists the most-cited scholars, and that list includes originalist-oriented scholars Caleb Nelson, Akhil Amar, Saikrishna Prakash, William Baude, Bradford Clark and Anthony Bellia (eight of the ten most cited).

And of the University of San Diego law faculty, two appear on the list of scholars cited by the Justices at least twice in the last two terms, and both of them are originalist-oriented scholars.

(But sadly, placement in a top journal appears to be a key factor too: "Looking at this practice from another angle, we can see that the justices tended to cite elite law reviews most frequently, although they cited a wide variety of law journals across all opinions. Over the past two terms the justices cited Harvard Law Review in 29 opinion-observations. Yale Law Journal was cited next most often with 15 cites, followed by University of Chicago Law Review with 12. Several journals outside of schools’ flagship law reviews received multiple cites, including the online Harvard Law Review Forum, the American Criminal Law Review and the Antitrust Law Journal.").